CRIMINAL LAW – Admission – Evidence Act 2008 – Voice identification – Taped record of interview with police used for the purposes of voice comparison – Whether ‘admission’ for the purposes of s 90 of the Evidence Act 2008 – Whether a record of interview with police used for the purposes of voice comparison should have been excluded under s 137 of the Evidence Act 2008 – Whether any other power to exclude exists – Application for leave to appeal against conviction granted – Appeal dismissed.
We have had the advantage of reading in draft the reasons for judgment prepared by Priest JA. His Honour has dealt thoroughly with the facts in this case, and the issues as they were outlined below.
We agree with Priest JA that the evidence of the recording of the applicant’s voice during his interview was not an ‘admission’ within the meaning of that term in s 90 of the Evidence Act 2008 (Vic) (‘the Act’). The discretion under s 90 of the Act is confined to ‘admissions.’ Clearly enough, that represents the legislature’s attempt to replicate what is commonly described as the ‘common law fairness’,[1] or the Lee[2]discretion. We agree with Priest JA’s analysis of s 90.
[1]Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence — Annotation and Commentary on the Uniform Evidence Acts (LexisNexis Butterworths, 2nd ed, 2009) 348.
[2]See R v Lee (1950) 82 CLR 133 (‘Lee’). In R v Swaffield; Pavic v The Queen (1998) 192 CLR 159, 193 [66] (‘Swaffield’) it was said (by Toohey, Gaudron and Gummow JJ) of this discretion that ‘fairness is a vague concept … the very nature of the concept inhibits great precision’.
As is the case…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Haddara v The Queen [2014] VSCA 100
Case
[2014] VSCA 100
Decision Date
CaseChat Overview and Summary
In the case of Haddara v The Queen, the appellant was convicted of various criminal charges and subsequently applied for leave to appeal against his conviction. The primary issues that arose in the appeal related to the use of a taped record of an interview with police for the purposes of voice comparison. The appellant argued that the use of this taped record constituted an "admission" under section 90 of the Evidence Act 2008 and that it should have been excluded under section 137 of the Evidence Act 2008 as it was unfair to the accused. Additionally, the appellant questioned whether any other power to exclude evidence existed.
The court considered the legislative framework provided by the Evidence Act 2008 and evaluated whether sections 90, 136, 137, and 138 provided an exhaustive code governing the exclusion of evidence. It was also necessary to determine whether a common law discretion to exclude evidence remained, and if so, whether it survived the provisions of the Evidence Act 2008. The court examined the effect of section 56 and whether section 464J of the Crimes Act 1958 had been impliedly repealed. In its analysis, the court distinguished cases such as McNeill v The Queen, Meteyard v Love, and Butcher v Lachlan Elder Realty, which were not followed.
The court granted the appellant leave to appeal against his conviction, but ultimately dismissed the appeal. It found that the statutory provisions for the exclusion of evidence were exhaustive and did not permit the exercise of a common law discretion. The court held that the use of the taped record for voice comparison did not constitute an admission under section 90 of the Evidence Act 2008, and therefore, it did not need to be excluded under section 137. Consequently, the appellant's conviction was upheld, and the appeal was dismissed.